*257 IV. Conclusion
The use of tort claims against family members requires the creation of a new theoretical and practical framework. Several factors should be considered when deciding whether to block or limit familial torts. These factors include trends consistent with modern tort law and with family relationships in modern society.
Tort claims against family members should be considered solely in line with tort law, rather than as an offshoot of family law. At the same time, it should be understood that there are instances in which the specific tort dispute should not be isolated from a broader family dispute over money, control, and power. It is possible for parties to use a tort claim (even its very filing for the purpose of deterrence) as a tool to resolve a broader family quarrel. Tort law could fill the vacuum left by a family law system that does not deal with the harm caused by the injurious behavior of a spouse. Because intrafamilial tort claims are distinct from a claims between two strangers, they should be handled with greater sensitivity, but they should certainly not be blocked as they would be under common law.
This essay proposes an intermediate solution between the individualistic approach, which recognizes the right of the individual to sue any tortfeasor-- even a spouse--in tort, and the family approach, which recognizes the importance of preserving family harmony and treating family affairs with sensitivity. The intermediate approach attempts to find a compromise between individualism and communitarism, between a focus on the individual and consideration of the sphere to which he belongs, through an understanding that intrafamilial litigation should not be treated with the same tools applied to tort litigation between two strangers. The considerations in favor of blocking the claim, primarily the importance of preserving the harmony of the family unit, serve here not to block the claim, but to limit the individualistic approach and prevent blanket acceptance of all claims.
The foundations of the intermediate proposal between the family and the individualistic approaches have been integrated into all the stages of the tort litigation process and make intelligent use, under the supervision of the court, of extrajudicial tools. This essay suggested that during the preliminary stage, tort claims should be recognized against a third party (such as insurer or employer) even if the spouse is the formal defendant, in estate claims, and when the family has broken down. In those cases the primary argument for the family approach--namely, family harmony--is irrelevant.
*258 The next stage is an attempt to resolve the spousal dispute following the filing of a tort claim. It involves quasi-mandatory participation in two court-supervised mediation sessions aimed at resolving the dispute. These sessions preserve the power of the court and its control of the process, while attempting to resolve the dispute through the extrajudicial process. The four goals of tort law--compensation, corrective justice, distributive justice, and deterrence--are fulfilled at least in part in this solution, since in emotional disputes the plaintiff does not always seek money, but rather remedies that the law cannot usually supply. Thus, the proposed solution--forcing the parties to participate in two sessions of mediation or therapy, while the legal proceedings are temporarily stopped, and ordering the mediator or the therapist to file a report to the court, without coercing the parties to continue to participate after these two sessions--is not contrary to the aims of tort law and constitutes a fine balance between the family and individualistic approaches.
Finally, the essay suggested three innovations in the trial phase of tort litigation against a spouse. The first suggestion is to legislate special “emotional” remedies such as apologies and expressions of remorse, as in defamation. The second is to alter the interpretation of the de minimis defense in regard to intrafamilial torts. And the third is to use the mechanism of aggravated and punitive damages in cases of intentional and severe torts.
The goal of this essay was to provide an initial framework for the question under discussion, and to outline a basic, in-principle legal policy for this delicate issue. Elaboration of the framework and a discussion of the torts themselves are left for later development.
The platform presented in this essay may be the beginning of a path for civil suits between spouses and within the family in general, not only for torts. A similar path may be taken in regard to contractual or property claims between family members.199 Although the goals of these sets of laws are different from those of tort law, the general view of the dilemma between the individualistic approach--whether applied in torts, contracts or property--and the family approach ought to be similar. Therefore, the problems raised regarding tort claims within the family, and even the solutions proposed for those dilemmas, may also be adapted, mutatis mutandis, to other civil suits.
*259 Although intrafamilial litigation in any area brings deeply-felt emotions to the surface, the conflict in intrafamilial tort litigation tends to be particularly severe. In intrafamilial litigation, the disputed issue is often not a monetary dispute, as in contract or property law. Instead, the disputes tend to be predicated on injuries that are unique to spousal relations, such as breach of promise to marry or deceit as to paternity of a child. These torts exist alongside the grounds for litigation between strangers, which are particularly salient when they occur between spouses: assault and abuse, defamation of character, or infringement of privacy. Injury to those values may bring about an excess of tension and emotional outbursts, and these are classic instances in which the real remedy sought may not be (only) monetary compensation.
Professor Dan Dobbs has noted, in discussing individual accountability as compared to social responsibility, that “[w]e are all individuals and we are all members of society.”200 If I may borrow from this idea, I can say that we are all individuals, but we are also members of a family, of some kind, and that tort law should take this reality into consideration.
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